The School of Public Policy offers a Master of Public Policy, as well as joint degrees
with Pepperdine's top-ranked graduate schools. Research initiatives and our Davenport
Institute further explore the role of leadership in policy.

If you are a passionate student who is looking to make a difference and be an agent
of change, we encourage you to apply today. We will take a holistic approach at reviewing
your application while considering many factors. Financial assistance options are
available if you qualify.

Located in Malibu, California, 30 miles northwest of Los Angeles, Pepperdine University
provides graduate students access to a robust academic experience, a vibrant city,
and an array of valuable resources.

Constitutional Law Cases: Rehnquist Court

1986 - 1989

U.S. Supreme Court EMPLOYMENT DIVISION v. SMITH, 485 U.S. 660 (1988) 485 U.S. 660 EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF THE STATE OF OREGON, ET AL.
v. SMITH CERTIORARI TO THE SUPREME COURT OF OREGON

No. 86-946.

Argued December 8, 1987 Decided April 27, 1988

On the basis of their employer's policy prohibiting its employees from using illegal
nonprescription drugs, respondent drug and alcohol abuse rehabilitation counselors
were discharged for ingesting a small quantity of peyote, a hallucinogenic drug, for
sacramental purposes during a religious ceremony of the Native American Church. It
is undisputed that respondents are members of that church and that their religious
beliefs are sincere. Respondents applied for and were denied unemployment compensation
by petitioner Employment Division under an Oregon statute disqualifying employees
discharged for work-connected misconduct. The State Court of Appeals reversed. The
State Supreme Court affirmed, reasoning that, although the benefits denials were proper
under Oregon law, Sherbert v. Verner, 374 U.S. 398 , and Thomas v. Review Bd., Indiana
Employment Security Div., 450 U.S. 707 , required the court to hold that the denials
significantly burdened respondents' religious freedom in violation of the Free Exercise
Clause of the First Amendment to the Federal Constitution. In reaching that conclusion,
the court attached no significance to the fact that peyote possession is a felony
in Oregon, declaring that the legality of ingesting peyote did not affect its analysis
of the State's interest in denying benefits, which must be found in the unemployment
compensation, rather than the criminal, statutes. Held: These cases must be remanded to the State Supreme Court for a definitive ruling as
to whether the religious use of peyote is legal is Oregon, since that question is
relevant to the federal constitutional analysis. Although Sherbert, Thomas, and Hobbie
v. Unemployment Appeals Comm'n, 480 U.S. 136 , prohibited the denial of unemployment
compensation to employees required to choose between fidelity to their religious beliefs
and cessation of work, those cases all involved employee conduct that was perfectly
legal. Their results might well have been different had the employees been discharged
for criminal conduct, since the First Amendment protects "`legitimate claims to the
free [485 U.S. 660, 661] exercise of religion,'" see Hobbie, 480 U.S., at 142 , not
conduct that a State has validly proscribed. If Oregon does prohibit the religious
use of peyote, and if that prohibition is consistent with the Federal Constitution
(a question that is not decided here), there is no federal right to engage in that
conduct in Oregon, and the State is free to withhold unemployment compensation from
respondents. If, on the other hand, Oregon is among those States that exempt the religious
use of peyote from statutory controlled substances prohibitions, respondents' conduct
may well be entitled to constitutional protection. Pp. 669-674. No. 86-946, 301 Ore. 209, 721 P.2d 445, and No. 86-947, 301 Ore. 221, 721 P.2d 451,
vacated and remanded. STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE,
O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL and BLACKMUN, JJ., joined, post, p. 674. KENNEDY, J., took no part in the
consideration or decision of the cases. [ Footnote * ] Together with No. 86-947, Employment Division, Department of Human
Resources of the State of Oregon, et al. v. Black, also on certiorari to the same
court. William F. Gary, Deputy Attorney General of Oregon, argued the cause for petitioners.
With him on the briefs were Dave Frohnmayer, Attorney General of Oregon, Virginia
L. Linder, Solicitor General, Michael D. Reynolds, Assistant Solicitor General, and
Christine Chute, Assistant Attorney General. Suanne Lovendahl argued the cause and filed a brief for respondents.Fn Fn [485 U.S. 660, 661] Briefs of amici curiae urging affirmance were filed for the
American Civil Liberties Union Foundation et al. by Charles A. Horsky, David H. Remes,
John A. Powell, and David B. Goldstein; for the American Jewish Congress et al. by
Amy Adelson, Lois C. Waldman, and Marc D. Stern; and for the Native American Church
of North America et al. by Walter R. Echo-Hawk and Steven C. Moore. JUSTICE STEVENS delivered the opinion of the Court. Respondents are drug and alcohol abuse rehabilitation counselors who were discharged
after they ingested peyote, a hallucinogenic drug, during a religious ceremony of
the Native American Church. Both applied for and were denied unemployment compensation
by petitioner Employment Division. The Oregon Supreme Court held that this denial,
although [485 U.S. 660, 662] proper as a matter of Oregon law, violated the Free Exercise
Clause of the First Amendment to the Federal Constitution. 1 In reaching that conclusion
the state court attached no significance to the fact that the possession of peyote
is a felony under Oregon law punishable by imprisonment for up to 10 years. 2 Because
we are persuaded that the alleged illegality of respondents' conduct is relevant to
the constitutional analysis, we granted certiorari, 480 U.S. 916 (1987), and now vacate
the judgments and remand for further proceedings. I Respondents Alfred Smith and Galen Black were employed by the Douglas County Council
on Alcohol and Drug Abuse Prevention and Treatment (ADAPT), a nonprofit corporation
that provides treatment for alcohol and drug abusers. Both were qualified to be counselors,
in part, because they had former drug and alcohol dependencies. As a matter of policy,
ADAPT required its recovering counselors to abstain from the use of alcohol and illegal
drugs. 3 ADAPT terminated [485 U.S. 660, 663] respondents' employment because they
violated that policy. As to each of them the violation consisted of a single act of
ingesting a small quantity of peyote for sacramental purposes at a ceremony of the
Native American Church. It is undisputed that respondents are members of that church,
that their religious beliefs are sincere, and that those beliefs motivated the "misconduct"
that led to their discharge. Both respondents applied for unemployment compensation. Petitioner Employment Division
considered the applications in a series of administrative hearings and appeals, 4
at the conclusion of which it determined that the applications should be denied. 5
Petitioner considered and rejected respondents' constitutional claim and concluded
that they were [485 U.S. 660, 664] ineligible for benefits because they had been discharged
for work-related "misconduct." 6 The Oregon Court of Appeals, considering the constitutional issue en banc, reversed
the Board's decisions. 7 The Oregon Supreme Court granted the State's petitions for
review in both cases to consider whether the denial of benefits violated the Oregon
Constitution 8 or the First Amendment to the Federal Constitution. The cases were
argued together, but the court issued separate opinions, fully analyzing the constitutional
issues only in Smith. [485 U.S. 660, 665] In accordance with its usual practice, 9 the court first addressed the Oregon constitutional
issue. The court concluded: "Under the Oregon Constitution's freedom of religion provisions, claimant has not
shown that his right to worship according to the dictates of his conscience has been
infringed upon by the denial of unemployment benefits. We do not imply that a governmental
rule or policy disqualifying a person from employment or from public services or benefits
by reason of conduct that rests on a religious belief or a religious practice could
not impinge on the religious freedom guaranteed by Article I, sections 2 and 3. Nor
do we revive a distinction between constitutional `rights' and `privileges.' But here
it was not the government that disqualified claimant from his job for ingesting peyote.
And the rule denying unemployment benefits to one who loses his job for what an employer
permissibly considers misconduct, conduct incompatible with doing the job, is itself
a neutral rule, as we have said. As long as disqualification by reason of the religiously
based conduct is peculiar to the particular employment and most other jobs remain
open to the worker, we do not believe that the state is denying the worker a vital
necessity in applying the `misconduct' exception of the unemployment compensation
law." 301 Ore. 209, 216, 721 P.2d 445, 448-449 (1986). Turning to the federal issue, the court reasoned that our decisions in Sherbert v.
Verner, 374 U.S. 398 (1963), and [485 U.S. 660, 666] Thomas v. Review Bd., Indiana
Employment Security Div., 450 U.S. 707 (1981), required it to hold that the denial
of unemployment benefits significantly burdened respondent's religious freedom. The
court also concluded that the State's interest in denying benefits was not greater
in this case than in Sherbert or Thomas. This conclusion rested on the premise that
the Board had erroneously relied on the State's interest in proscribing the use of
dangerous drugs rather than just its interest in the financial integrity of the compensation
fund. Whether the state court believed that it was constrained by Sherbert and Thomas
to disregard the State's law enforcement interest, or did so because it believed petitioner
to have conceded that the legality of respondent's conduct was not in issue, is not
entirely clear. The relevant paragraph in the court's opinion reads as follows: "Nor is the state's interest in this case a more `overriding' or `compelling' interest
than in Sherbert and Thomas. The Board found that the state's interest in proscribing
the use of dangerous drugs was the compelling interest that justified denying the
claimant unemployment benefits. However, the legality of ingesting peyote does not
affect our analysis of the state's interest. The state's interest in denying unemployment
benefits to a claimant discharged for religiously motivated misconduct must be found
in the unemployment compensation statutes, not in the criminal statutes proscribing
the use of peyote. The Employment Division concedes that `the commission of an illegal
act is not, in and of itself, grounds for disqualification from unemployment benefits.
ORS 657.176(3) permits disqualification only if a claimant commits a felony in connection
with work . . . . [T]he legality of [claimant's] ingestion of peyote has little direct
bearing on this case." 301 Ore., at 218-219, 721 P.2d, at 450. [485 U.S. 660, 667] The court noted that although the possession of peyote is a crime in Oregon, such
possession is lawful in many jurisdictions. 10 In its opinion in Black, the court rejected the Court of Appeals' conclusion that
the case should be remanded for factual findings on the religious character of respondent's
peyote use. Although the referee's findings concerning the use of peyote were somewhat
sparse, the court found them sufficient to support the conclusions that the Native
American Church is a recognized religion, that peyote is a sacrament of that church,
and that respondent's beliefs were sincerely held. The court noted that other courts
had acknowledged the role of peyote in the Native American Church and quoted at length
from a decision of the California Supreme Court. 11 [485 U.S. 660, 668] This extensive
quotation from an opinion that explains why the religious use of peyote is permitted
in California raises the question whether the Oregon court might reach a similar conclusion.
[485 U.S. 660, 669] II Respondents contend that the sacramental use of small quantities of peyote in the
Native American Church is comparable to the sacramental use of small quantities of
alcohol in Christian religious ceremonies. Even though the State may generally prohibit
the use of hallucinogenic drugs and alcohol for recreational purposes and strictly
regulate their use for medicinal purposes, respondents assert that the Constitution
requires some measure of accommodation for religious use. Alternatively, they argue
that Oregon's general prohibition against the possession of peyote is not applicable
to its use in a genuine religious ceremony. Even if peyote use is a crime in Oregon,
since the State does not administer its unemployment compensation program for law
enforcement purposes, they conclude that our decisions in Sherbert and Thomas require
that they be awarded benefits. The Oregon Supreme Court agreed with respondents' conclusion, but it did not endorse
all of their reasoning. The state court appears to have assumed, without specifically
deciding, that respondents' conduct was unlawful. That assumption did not influence
the court's disposition of the cases because, as a matter of state law, the commission
of an illegal act is not itself a ground for disqualifying a discharged employee from
benefits. It does not necessarily follow, however, [485 U.S. 660, 670] that the illegality
of an employee's misconduct is irrelevant to the analysis of the federal constitutional
claim. For if a State has prohibited through its criminal laws certain kinds of religiously
motivated conduct without violating the First Amendment, it certainly follows that
it may impose the lesser burden of denying unemployment compensation benefits to persons
who engage in that conduct. There is no absolute "constitutional right to unemployment benefits on the part of
all persons whose religious convictions are the cause of their unemployment." Sherbert
v. Verner, 374 U.S., at 409 -410. On three separate occasions, however, we have held
that an employee who is required to choose between fidelity to religious belief and
cessation of work may not be denied unemployment compensation because he or she is
faithful to the tenets of his or her church. As we explained in Sherbert: "Governmental imposition of such a choice puts the same kind of burden upon the free
exercise of religion as would a fine imposed against appellant for her Saturday worship."
Id., at 404. In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals Comm'n of Fla., 480
U.S. 142 (1987), the conduct that gave rise to the termination of employment was perfectly
legal; 12 indeed, the Court assumed that it was immune from state regulation. 13 [485
U.S. 660, 671] The results we reached in Sherbert, Thomas, and Hobbie might well have been different
if the employees had been discharged for engaging in criminal conduct. We have held
that bigamy may be forbidden, even when the practice is dictated by sincere religious
convictions. Reynolds v. United States, 98 U.S. 145 (1879). If a bigamist may be sent
to jail despite the religious motivation for his misconduct, surely a State may refuse
to pay unemployment compensation to a marriage counselor who was discharged because
he or she entered into a bigamous relationship. The protection that the First Amendment
provides to "`legitimate claims to the free exercise of religion,'" see Hobbie, 480
U.S., at 142 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)) (emphasis added),
does not extend to conduct that a State has validly proscribed. [485 U.S. 660, 672] Neither the Oregon Supreme Court nor this Court has confronted the question whether
the ingestion of peyote for sincerely held religious reasons is a form of conduct
that is protected by the Federal Constitution from the reach of a State's criminal
laws. It may ultimately be necessary to answer that federal question in this case,
but it is inappropriate to do so without first receiving further guidance concerning
the status of the practice as a matter of Oregon law. 14 A substantial number of jurisdictions
have exempted the use of peyote in religious ceremonies from legislative prohibitions
against the use and possession of controlled substances. 15 If Oregon is one of those
States, respondents' conduct may well be entitled to constitutional protection. On
the other hand, if Oregon does prohibit the religious use of peyote, and if that prohibition
is consistent with the Federal Constitution, there is no federal right to engage in
that conduct in Oregon. If that is the case, the State is free to withhold unemployment
compensation from respondents for engaging in work-related misconduct, despite its
religious motivation. Thus, paradoxical as it may first appear, a necessary predicate
to a correct evaluation of respondents' federal claim is an understanding of the legality
of their conduct as a matter of state law. Relying on the fact that Oregon statutes prohibit the possession of peyote, see Ore.
Rev. Stat. 475.992(4) (1987), rather than its use, and the further fact that the Oregon
Court of Appeals held that the ingestion of a controlled substance [485 U.S. 660,
673] into the bloodstream did not constitute "possession" within the meaning of the
predecessor statute, State v. Downes, 31 Ore. App. 1183, 572 P.2d 1328 (1977), respondents
argue that their ceremonial use of the drug was not unlawful. 16 The Attorney General
of the State advises us that this argument is without merit. But in the absence of
a definitive ruling by the Oregon Supreme Court we are unwilling to disregard the
possibility that the State's legislation regulating the use of controlled substances
may be construed to permit peyotism or that the State's Constitution may be interpreted
to protect the practice. 17 That the Oregon Supreme Court's opinions in these cases
not only noted that other States "exempt the religious use of peyote through caselaw,"
18 but also quoted extensively from a California opinion that did so, lends credence
to the possibility that this conduct may be lawful in Oregon. Because we are uncertain about the legality of the religious use of peyote in Oregon,
it is not now appropriate for us to decide whether the practice is protected by the
Federal Constitution. See Ashwander v. TVA, 297 U.S. 288, 346 -347 (1936) (Brandeis,
J., concurring). The possibility that respondents' conduct would be unprotected if
it violated the State's criminal code is, however, sufficient to counsel against affirming
the state court's holding that the Federal Constitution requires the award of benefits
to these respondents. If the Oregon Supreme Court's holding rests on the [485 U.S.
660, 674] unstated premise that respondents' conduct is entitled to the same measure
of federal constitutional protection regardless of its criminality, that holding is
erroneous. If, on the other hand, it rests on the unstated premise that the conduct
is not unlawful in Oregon, the explanation of that premise would make it more difficult
to distinguish our holdings in Sherbert, Thomas, and Hobbie. We therefore vacate the
judgments of the Oregon Supreme Court and remand the cases for further proceedings
not inconsistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of these cases. Footnotes [ Footnote 1 ] "Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof . . . ." U.S. Const., Amdt. 1. [ Footnote 2 ] Ore. Rev. Stat. 475.992(4)(a), 161.605(2) (1987); see 301 Ore. 209,
219, n. 2, 721 P.2d 445, 450, n. 2 (1986) (quoted in n. 10, infra). [ Footnote 3 ] This policy reflected ADAPT's treatment philosophy that successful
recovery from addiction requires complete abstinence from the use of alcohol and nonprescription
drugs. The policy also served to assure that counselors were appropriate role models
for their clients. ADAPT's policy statement on drug and alcohol abuse provided, in
pertinent part: "POLICY STATEMENT ALCOHOL AND OTHER DRUG USE BY EMPLOYEES "In keeping with our drug-free philosophy of treatment, and our belief in the disease
concept of alcoholism, and associated complex issues involved in both alcoholism and
drug addiction, we require the following of our employees: "1. Use of an illegal drug or use of prescription drugs in a nonprescribed manner
is grounds for immediate termination from employment. . . . . . "3. Any use of alcohol by recovering staff will not be allowed, and is grounds for
immediate disciplinary action, up to and including termination. [485 U.S. 660, 663]
Use shall be defined as any ingestion of an alcoholic beverage, in any situation."
App. 11. [ Footnote 4 ] Raising identical legal issues and presenting almost identical facts,
these two cases proceeded in tandem through state administrative proceedings and through
the state courts. They were consolidated upon order of this Court when the State's
petitions for certiorari were granted. 480 U.S. 916 (1987). [ Footnote 5 ] Each respondent requested a hearing after his application for benefits
was denied because he had been discharged for work-related misconduct. After separate
hearings, a referee decided that both respondents were entitled to unemployment compensation
benefits. In Black's case, the referee held that his ingestion of peyote was "an isolated
incident of poor judgment" rather than misconduct. App. 3-5. In Smith's case, the
referee concluded that because "there is no evidence in the hearing record to indicate
that granting benefits to claimants whose unemployment is caused by adherence to religious
beliefs would have any significant impact on the trust fund, it cannot be held that
the alleged State interest warrants interference with the claimant's freedom of religion."
App. to Pet. for Cert. in No. 86-946, p. A25. On review the Employment Appeals Board
disagreed with the referee and concluded that benefits should be denied in both cases.
As to Smith, the Board ruled that the State had shown a compelling state interest
in denying benefits. That interest was "in the proscription of illegal drugs, not
merely in the burden upon the Unemployment Compensation Trust Fund." Id., at A19-A20.
In Black's case the Board merely reversed the referee's finding that Black had not
been fired for misconduct without reaching the First Amendment issue. App. to Pet.
for Cert. in No. 86-947, pp. A23-A24. [ Footnote 6 ] Oregon Rev. Stat. 657.176(2)(a) (1987) provides that "[a]n individual
shall be disqualified from the receipt of benefits . . . if . . . the individual .
. . [h]as been discharged for misconduct connected with work." Oregon Admin. Rule 471-30-038(3) (1987) provides: "Under the provisions of ORS 657.176(2)(a) and (b), misconduct is a wilful violation
of the standards of behavior which an employer has the right to expect of an employe.
An act that amounts to a wilful disregard of an employer's interest, or recurring
negligence which demonstrates wrongful intent is misconduct. Isolated instances of
poor judgment, good faith errors, unavoidable accidents, absences due to illness or
other physical or mental disabilities, or mere inefficiency resulting from lack of
job skills or experience are not misconduct for purposes of denying benefits under
ORS 657.176." [ Footnote 7 ] In Black's case the majority concluded that the denial of benefits
to persons who were discharged for engaging in a religious act constituted a substantial
burden on free exercise rights that was not justified by the State's interest in protecting
the Unemployment Compensation Fund from depletion and remanded for further factual
findings on the religious nature of respondent's conduct. The dissenting judges expressed
the opinion that because the ingestion of peyote was prohibited by Oregon law respondent
had no protectible constitutional right on which to base his claim. 75 Ore. App. 735,
707 P.2d 1274 (1985). Smith's case was reversed and remanded for further consideration
in light of the decision in Black. 75 Ore. App. 764, 709 P.2d 246 (1985). [ Footnote 8 ] Article I of the Oregon Constitution provides, in part: "Section 2. Freedom of worship. All men shall be secure in the Natural right, to
worship Almighty God according to the dictates of their own consciences. "Section 3. Freedom of religious opinion. No law shall in any case whatever control
the free exercise, and enjoyment of religious opinions, or interfere with the rights
of conscience." [ Footnote 9 ] The Oregon Supreme Court stated in Sterling v. Cupp, 290 Ore. 611,
614, 625 P.2d 123, 126 (1981): "The proper sequence is to analyze the state's law, including its constitutional
law, before reaching a federal constitutional claim. This is required, not for the
sake either of parochialism or of style, but because the state does not deny any right
claimed under the federal Constitution when the claim before the court in fact is
fully met by state law." See also Linde, E Pluribus - Constitutional Theory and State Courts, 18 Ga. L. Rev.
165, 178-179 (1984). [ Footnote 10 ] The court commented in a footnote: "Under ORS 475.992(4) and OAR 855-80-020, the possession of peyote is a crime. Peyote
(Lophophora williamsii) is a cactus that `contains a number of active alkaloids with
varying properties; the chief hallucinogen among these alkaloids is mescaline.' Note,
Hallucinogens, 68 Colum L Rev 521, 525 (1968). The Oregon Court of Appeals, construing
a previous statute, has held that religious users of peyote are not exempt from criminal
sanctions. State v. Soto, 21 Or App 794, 537 P.2d 142 (1975), cert den 424 U.S. 955
(1976). The federal government and several states exempt the religious use of peyote
through caselaw, statute or regulation. See State v. Whittingham, 19 Ariz App 27,
504 P.2d 950 (1973), cert den 417 U.S. 946 (1974); People v. Woody, 61 Cal 2d 716,
40 Cal Rptr 69, 394 P.2d 813 (1964); Whitehorn v. State, 561 P.2d 539 (Okla Crim App
1977); 21 CFR 1307.31 (1985); Iowa Code Ann 204.204(8) (1986); NM Stat Ann 30-31-6(D)
(1980); SD Comp Laws Ann 34-20B-14(17) (1977); Tex Stat Ann 4476-15 4.11 (1976)."
301 Ore., at 219, n. 2, 721 P.2d, at 450, n. 2. [ Footnote 11 ] 301 Ore. 221, 225-227, 721 P.2d 451, 453-454 (1986), quoting People
v. Woody, 61 Cal. 2d 716, 720-721, 394 P.2d 813, 817-818 (1964): "`Peyote, as we shall see, plays a central role in the ceremony and practice of the
Native American Church, a religious organization of Indians. Although the church claims
no official prerequisites to membership, no written membership rolls and no recorded
theology, estimates of its membership range from 30,000 to 250,000, the wide variance
deriving from differing definitions of a "member." As the anthropologists have ascertained
through conversations with members, the theology of the church combines [485 U.S.
660, 668] certain Christian teachings with the belief that peyote embodies the Holy
Spirit and that those who partake of peyote enter into direct contact with God. "`Peyotism discloses a long history. A reference to the religious use of peyote in
Mexico appears in Spanish historical sources as early as 1560. Peyotism spread from
Mexico to the United States and Canada; American anthropologists describe it as well
established in this country during the latter part of the nineteenth century. Today,
Indians of many tribes practice Peyotism. Despite the absence of recorded dogma, the
several tribes follow surprisingly similar ritual and theology; the practices of Navajo
members of Arizona practically parallel those of adherents in California, Montana,
Oklahoma, Wisconsin, and Saskatchewan. "`The "meeting," a ceremony marked by the sacramental use of peyote, composes the
cornerstone of the peyote religion. The meeting convenes in an enclosure and continues
from sundown Saturday to sunrise Sunday. To give thanks for the past good fortune
or find guidance for future conduct, a member will "sponsor" a meeting and supply
to those who attend both the peyote and the next morning's breakfast. The "sponsor,"
usually but not always the "leader," takes charge of the meeting; he decides the order
of events and the amount of peyote to be consumed. Although the individual leader
exercises an absolute control of the meeting, anthropologists report a striking uniformity
of its ritual. "`A meeting connotes a solemn and special occasion. Whole families attend together,
although children and young women participate only by their presence. Adherents don
their finest clothing, usually suits for men and fancy dresses for the women, but
sometimes ceremonial Indian costumes. At the meeting the members pray, sing, and make
ritual use of drum, fan, eagle bone, whistle, rattle and prayer cigarette, the symbolic
emblems of their faith. The central event, of course, consists of the use of peyote
in quantities sufficient to produce an hallucinatory state. "`At an early but fixed stage in the ritual the members pass around a ceremonial
bag of peyote buttons. Each adult may take four, the customary number, or take none.
The participants chew the buttons, usually with some difficulty because of extreme
bitterness; later, at a set time in the ceremony any member may ask for more peyote;
occasionally a member may take as many as four more buttons. At sunrise on Sunday
the ritual ends; after a brief outdoor prayer, the host and his family serve [485
U.S. 660, 669] breakfast. Then the members depart. By morning the effects of the peyote
disappear; the users suffer no after-effects. "`Although peyote serves as a sacramental symbol similar to bread and wine in certain
Christian churches, it is more than a sacrament. Peyote constitutes in itself an object
of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost.
On the other hand, to use peyote for nonreligious purposes is sacrilegious. Members
of the church regard peyote also as a "teacher" because it induces a feeling of brotherhood
with other members; indeed it enables the participant to experience the Deity. Finally,
devotees treat peyote as a "protector." Much as a Catholic carries his medallion,
an Indian G. I. often wears around his neck a beautifully beaded pouch containing
one large peyote button'" (footnote omitted). [ Footnote 12 ] In Sherbert v. Verner, the appellant was discharged because she would
not work on Saturday, the Sabbath Day of her faith. When the petitioner in Thomas
v. Review Bd., Indiana Employment Security Div., 450 U.S. 707 (1981), was required
to work on turrets for military tanks, he terminated his employment because his religious
beliefs prevented him from participating in the production of war materials. And in
Hobbie v. Unemployment Appeals Comm'n of Fla., the appellant's religion precluded
work between sundown on Friday and sundown on Saturday; she was discharged because
she therefore could not work all of her scheduled shifts. [ Footnote 13 ] The distinction between the absolute constitutional protection against
governmental regulation of religious beliefs on the one hand, and the qualified [485
U.S. 660, 671] protection against the regulation of religiously motivated conduct,
on the other, was carefully explained in our opinion in Sherbert: "The door of the Free Exercise Clause stands tightly closed against any governmental
regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303
. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins,
367 U.S. 488 ; nor penalize or discriminate against individuals or groups because
they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345
U.S. 67 ; nor employ the taxing power to inhibit the dissemination of particular religious
views, Murdock v. Pennsylvania, 319 U.S. 105 ; Follett v. McCormick, 321 U.S. 573
; cf. Grosjean v. American Press Co., 297 U.S. 233 . On the other hand, the Court
has rejected challenges under the Free Exercise Clause to governmental regulation
of certain overt acts prompted by religious beliefs or principles, for `even when
the action is in accord with one's religious convictions, [it] is not totally free
from legislative restrictions.' Braunfeld v. Brown, 366 U.S. 599, 603 . The conduct
or actions so regulated have invariably posed some substantial threat to public safety,
peace or order. See, e. g., Reynolds v. United States, 98 U.S. 145 ; Jacobson v. Massachusetts,
197 U.S. 11 ; Prince v. Massachusetts, 321 U.S. 158 ; Cleveland v. United States,
329 U.S. 14 . "Plainly enough, appellant's conscientious objection to Saturday work constitutes
no conduct prompted by religious principles of a kind within the reach of state legislation."
374 U.S., at 402 -403. [ Footnote 14 ] See nn. 10 and 11, supra. [ Footnote 15 ] See 21 CFR 1307.31 (1987) (exempting use of peyote in bona fide religious
ceremonies of the Native American Church); Iowa Code 204.204 (8) (1985) (same); N.
M. Stat. Ann. 30-31-6(D) (1987) (exempting use of peyote in bona fide religious ceremonies
by bona fide religious organizations); S. D. Codified Laws 34-20B-14(17) (1987) (exempting
sacramental use of peyote in services of the Native American Church); Tex. Rev. Civ.
Stat. Ann., Art. 4476-15 4.11 (Supp. 1988) (exempting use of peyote by Native American
Church members with not less than 25% Indian blood in bona fide religious ceremonies).
These authorities were cited by the Oregon Supreme Court. See n. 10, supra. [ Footnote 16 ] At the time Downes was decided, Oregon law proscribed both the use
and possession of controlled substances. In 1977, the Oregon Legislature passed the
Uniform Controlled Substances Act, Ore. Rev. Stat. 475.005 et seq. (1987), which repealed
the use and possession statutes discussed in Downes and enacted a provision that addresses
only the possession of controlled substances. See 475.992(4). [ Footnote 17 ] Our concern, of course, is not with whether some fact unique to respondents'
cases bars their prosecution, but with whether Oregon law provides a general exemption
from the scope of its criminal laws for the religious use of peyote. [ Footnote 18 ] See n. 10, supra. JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting. Respondents Smith and Black were fired for practicing their religion. The Employment
Division of the Oregon Department of Human Resources deemed respondents' worship "misconduct
connected with work," Ore. Rev. Stat. 657.176(2)(a) (1987), and accordingly denied
them unemployment benefits. Citing a "compelling state interest . . . in the proscription
of illegal drugs," the Employment Appeals Board rejected the assertion that the Free
Exercise Clause prohibited the denial of unemployment benefits to an employee discharged
for religious use of peyote. App. to Pet. for Cert. in No. 86-946, p. A20. The Oregon
Supreme Court, disavowing any state interest in enforcing its criminal laws through
the denial of unemployment benefits, found the State's interest indistinguishable
from those asserted in Sherbert v. Verner, 374 U.S. 398, 403 (1963), and Thomas v.
Review Bd., Indiana Employment Security Div., 450 U.S. 707 (1981). On the authority
of those cases it held that the denial violated respondents' First Amendment right
to exercise their religion freely. Smith v. Employment Division, 301 Ore. 209, 212,
721 P.2d 445, 446 (1986); Black v. Employment [485 U.S. 660, 675] Division, 301 Ore.
221, 721 P.2d 451 (1986). This Court today strains the state court's opinion to transform
the straightforward question that is presented into a question of first impression
that is not. A generation ago, we established that a State may not deny unemployment benefits
to an employee discharged for her adherence to religious practices unless the "incidental
burden on the free exercise of [her] religion [is] justified by a `compelling state
interest in the regulation of a subject within the State's constitutional power to
regulate . . . .'" Sherbert, supra, at 403 (citation omitted). In Thomas, supra, and
again as recently as last Term, see Hobbie v. Unemployment Appeals Comm'n of Fla.,
480 U.S. 142 (1987), we reaffirmed Sherbert's holding that, where the "`state . .
. denies . . . a benefit because of conduct mandated by religious belief,'" the resultant
burden on the free exercise of religion "must be subjected to strict scrutiny and
could be justified only by proof by the State of a compelling interest." 480 U.S.,
at 141 (quoting Thomas, supra, at 717-718) (emphasis omitted). Where the burden on
religion is imposed pursuant to a statute, we have an independent obligation to ascertain
that the legislature in fact intended to advance the asserted interest through the
statutory scheme. Cf. Sherbert, supra, at 407. We may not, particularly when engaging
in strict scrutiny, blindly accept the interest that the State asserts in court. See,
e. g., Mississippi University for Women v. Hogan, 458 U.S. 718, 730 (1982) (all-women
state university fails intermediate scrutiny because, "although the State recited
a `benign, compensatory purpose,' it failed to establish that the alleged objective
is the actual purpose underlying the discriminatory [statutory] classification") (footnote
omitted); Hampton v. Mow Sun Wong, 426 U.S. 88, 103 -104 (1976) ("When the Federal
Government asserts an overriding national interest as justification for a discriminatory
rule . . . , due process requires that there be a legitimate basis for presuming that
the rule was actually intended to serve that [485 U.S. 660, 676] interest"); Weinberger
v. Wiesenfeld, 420 U.S. 636, 648 , n. 16 (1975) (under rationality review, "[t]his
Court need not . . . accept at face value assertions of legislative purposes, when
an examination of the legislative scheme and its history demonstrates that the asserted
purpose could not have been a goal of the legislation"). Smith and Black - like Sherbert, Thomas, and Hobbie - were discharged from their
employment because their religious practices conflicted with their employer's interests.
The only difference between the cases before us and the situations we faced in Sherbert,
Thomas, and Hobbie is that here the Employment Division has asserted in court a "`compelling
state interest . . . in the proscription of illegal drugs,'" not merely the interest
in avoiding the financial "`burden upon the Unemployment Compensation Trust Fund'"
that we found not compelling in Sherbert. Smith, supra, at 212, 721 P.2d, at 446 (quoting
opinion of Employment Appeals Board). Such an interest in criminal law enforcement
would present a novel issue if it were in fact an interest that Oregon had sought
to advance in its unemployment compensation statute. Far from validating any such state interest, however, the State's highest court has
disavowed it. In the paragraph that this Court quotes at length, ante, at 666, the
Oregon Supreme Court could scarcely have been clearer. The state court understood
that the Employment Division may not overcome the burden on religion by invoking a
theoretically plausible interest that in fact the state legislature had no intention
of furthering when it enacted the unemployment compensation statute: "The state's
interest in denying unemployment benefits to a claimant discharged for religiously
motivated misconduct must be found in the unemployment compensation statutes, not
in the criminal statutes proscribing the use of peyote." Smith, supra, at 219, 721
P.2d at 450 (footnote omitted); see also Black, supra, (relying on Smith's analysis).
The state court could find no legislative [485 U.S. 660, 677] intent expressed in
the unemployment statute to reinforce criminal drug-abuse laws. Although we are not
bound by a state-court determination that a state legislature was actually motivated
by a particular validating purpose, see Stone v. Graham, 449 U.S. 39, 41 (1980), we
have never attributed to a state legislature a validating purpose that the State's
highest court could find nowhere in the statute. To do so would be inconsistent with
our responsibility to scrutinize strictly state-imposed burdens on fundamental rights.
At any rate, this Court offers no reason to discount the Oregon Supreme Court's disavowal
of the validating purpose. Nor has the Employment Division asserted any further interest
other than those that Sherbert, Thomas, and Hobbie have rejected. I would therefore
affirm the Oregon Supreme Court. The Court avoids this straightforward analysis, proclaiming instead that it has difficulty
discerning "[w]hether the state court believed that it was constrained by Sherbert
and Thomas to disregard the State's law enforcement interest, or did so because it
believed petitioner to have conceded that the legality of respondent's conduct was
not in issue," ante, at 666. The difficulty, however, is entirely of this Court's
own making, for it poses two entirely implausible interpretations of the opinions
below and overlooks the only natural one. The Oregon Supreme Court both introduced and concluded the relevant passage by stressing
the similarity between the state interests asserted here and those asserted in Sherbert
and Thomas. See Smith, 301 Ore., at 218, 721 P.2d, at 450 (the "state's interest in
this case [is no] more `overriding' or `compelling' . . . than in Sherbert and Thomas");
id., at 219-220, 721 P.2d, at 450-451 ("The state's interest is simply the financial
interest in the payment of benefits from the unemployment insurance fund to this claimant
and other claimants similarly situated," which "Sherbert and Thomas did not find .
. . `compelling' when weighed against the free exercise rights of the claimant").
At no point in the comparison did [485 U.S. 660, 678] the state court suggest, as
this Court's first alternative interpretation does, that it could discern an additional
state interest (namely, the interest in enforcing criminal drug-abuse laws) that Sherbert
and Thomas "constrained" it to "disregard." Moreover, the state court did not so much
as suggest why Sherbert and Thomas would so constrain the State. Even the State's
attorney could not in good conscience offer the interpretation that this Court adopts,
without the caveat "that it is not entirely apparent from the face of the opinion,"
Tr. of Oral Arg. 7. Nor is it accurate to read the passage, as this Court's second alternative interpretation
does, as merely binding the Employment Division to a concession "that the legality
of respondent's conduct was not in issue." The Employment Division conceded only the
patently obvious point that the asserted interest in criminal law enforcement is nowhere
to "be found in the unemployment compensation statutes," 301 Ore., at 219, 721 P.2d,
at 450, and that the legality of peyote use was therefore irrelevant to the determination
whether the statute purported to deny benefits. The Employment Division hotly disputed
the proposition that it could not answer respondents' free exercise challenge by asserting
an interest that appears nowhere in its unemployment compensation scheme. The very
passage that the Court quotes demonstrates as much: "The Board found that the state's
interest in proscribing the use of dangerous drugs was the compelling interest that
justified denying the claimant unemployment benefits." Id., at 218-219, 721 P.2d,
at 450. The remand in these cases thus rests on a purported ambiguity that has no
basis in the opinions below. Perhaps more puzzling than the imagined ambiguity is the Court's silence as to its
relevance. The Court merely remands these cases to the Oregon Supreme Court for further
proceedings after concluding that a "necessary predicate" to its analysis is a pronouncement
by the state court on whether respondents' conduct was criminal. Ante, at 672. It
seems [485 U.S. 660, 679] to me that the state court on remand could readily resolve
these cases without reaching that issue. The Court has expressed no intention to depart
from the longstanding rule that, in strictly scrutinizing state-imposed burdens on
fundamental rights, courts may not assert on a State's behalf interests that the State
does not have. See supra, at 675-676. Accordingly, I must assume that the Court has
tacitly left the Oregon Supreme Court the option to dispose of these cases by simply
reiterating its initial opinion and appending, "and we really mean it," or words to
that effect. A slot on this Court's calendar is both precious and costly. Inevitably, each Term
this Court discovers only after painstaking briefing and oral argument that some cases
do not squarely present the issues that the Court sought to resolve. There is always
the temptation to trivialize the defect and decide the novel case that we thought
we had undertaken rather than the virtual clone of precedent that we actually undertook.
Here, however, the Court's belated effort to recoup sunk costs is not worth the price.
Today's foray into the realm of the hypothetical will surely cost us the respect of
the State Supreme Court whose words we misconstrue. That price is particularly exorbitant
where, as here, the state court is most likely to respond to our efforts by merely
reiterating what it has already stated with unmistakable clarity. I dissent. [485 U.S. 660, 680]